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Computers with prepackaged software, Part 3

by Dennis Faas on December, 31 2002 at 08:12AM EST

This is the third installment on a series of comments based on the following scenario:

" When someone buys a new computer (either brand name or clone) that is preloaded with an Operating System (OS), is the seller obliged to give the client an original CD which includes the Operating System? "

Last week I provided various short-but-sweet answers to the above question from various readers of the Infopackets Gazette. The gist was that retailers are required to provide Windows on a CD, whether it comes pre-packaged like Compaq, and Dell machines do -- or, if it comes with the basic Operating Windows System (usually "OEM").

I also received a very thought-provoking answer from Rick K., but chose to save his ramblings for this edition of the Gazette. Rick's response is a bit lengthy, but makes for a good read and is sure to boil some blood.

Rick writes:

" The short answer is that there is no legal requirement nor is there a marketing requirement as most people don't pay attention and buy the computer anyway. At one time so many people insisted on restore CD's that they were always included, as was technical support. As the industry went from the early adopters who shop and pay attention to details, to the more typical box-buying average joe's who bought the lowest priced, no CD, unsupported computers; all the manufacturers followed suit (except Apple, as one of their selling points is quality). TANSTAAFL! (There ain't no such thing as a free lunch).

Also be aware; nowadays if you purchase a Windows XP computer, you do not 'own' it in the traditional sense. You are only licensing use under a subscription plan. Microsoft's EULA contains Product Use Rights, (see this link) that state in no uncertain terms that they control the computer, and can at any time delete or disable any software you own.

" You can be forgiven if you feel like you have better things to do with your life than reading and rereading all this mind-numbing legal gobbledygook. Fortunately, one Microsoft customer did review the PUR document recently and noticed a change. In the section on Windows XP Professional, he found the 'Internet-Based Services Components' paragraph that said in part, 'You acknowledge and agree that Microsoft may automatically check the version of the Product and/or its components that you are utilizing and may provide upgrades or fixes to the Product that will be automatically downloaded to your Workstation Computer.'

Several readers were also worried that Microsoft's broad assertion of its right to access their computers would force their companies into noncompliance with government security guidelines and various privacy laws. This concern was exacerbated by additional PUR language in the same Windows XP section. In terms of 'Security Updates,' users grant Microsoft the right to download updates to Microsoft's DRM (Digital Rights Management) technology to protect the intellectual property rights of 'Secured Content' providers. It says Microsoft may 'download onto your computer such security updates that a secure content owner has requested that MS, Microsoft Corporation, or their subsidiaries distribute.' In other words, it would seem Microsoft's idea of a security update is one that protects the property rights of vendors, not the security of customers' systems.

Both corporate and individual customers can choose to turn off Windows Auto-Update, the Microsoft officials pointed out. Similarly, users will be told when a content owner is requiring an update to Microsoft's DRM technology and they will have the option to download it. 'If the user elects not to update the security component, he or she will be unable to play content protected by our DRM from that point forward, although content previously obtained would still be usable.'

What they are not saying Microsoft has the right and ability to upload your registry file. If they find a serial number that is not registered to you they can 'update' it to disable or delete it. For any product; their's or 'DRM' partners.

(Note: 'Updates' are to be performed any time you go to Microsoft's site for tech support, call Microsoft to get Tech Support, etc. The original database is created the first time a new user uses Internet Explorer and is automatically taken to Microsoft's site; uses windows update, etc. But wait! Did you know there is a way to run Internet Explorer without a task showing up on the task bar, any indication in Task Manager that the process is running? How do you think those viruses got spread anyway?)

Microsoft has the right and ability to download your directory file (File Allocation Table). If they find any directory or file name not in the registry, they can again 'update' it.

Microsoft has the right to claim that a competitor's product (e.g. WordPerfect) is corrupting your Windows XP and disabling or deleting it to protect the OS. You may remember they pulled this one on DR DOS, Windows 3.x would claim that you did not have MS-DOS and could expect problems - and you may remember they were sued and had to pay millions in damages in that suit. Now they have it in the license that they can do it legally.

When you buy a computer, with Windows on it, the first time you turn it on, you MUST accept the terms of the License agreement to continue, and then put in a Serial Number. OR reformat the drive and put LINUX on it even though you already paid for Windows. The license agreement specifically states that they can change the license in any way at any time and you are bound by the CURRENT license agreement AS POSTED ON THEIR WEB SITE.

In essence you must agree that Microsoft owns the computer and you are only subscribing to a license at their sufferance.

Is this legal?

Yes. its the Computer Manufacturers who are selling the computers this way and until the Manufacturers, who are benefiting from increased sales due to the 'planned obsolescence' caused by Microsoft changing the Operating System to constantly require more RAM, bigger Hard drives and faster Processors to run the same programs. The manufacturers are only making money because of new versions of Windows, They are not going to complain until they are sued.

The only grounds for the complaint would be non-merchantability or false advertising (you thought you were buying a computer system like a Linux system or an Apple that includes you owning a copy of the Operating System while Windows is a subscription service) and that claim, the courts may say is questionable as Windows is a monopoly and you should have known that you had no legal rights; you don't own the computer, you own a paperweight. The false advertising would come in if the Manufacturer actually said that you could do any computer tasks like word processing, without agreeing to Microsoft's terms or buying and installing Linux. "